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United States v. Felder

May 27, 2009


The opinion of the court was delivered by: Thomas J. McAVOY, Senior United States District Judge



Defendant Albert Felder was convicted upon his guilty plea of engaging in a continuing criminal enterprise in violation of 21 U.S.C. § 848. At sentencing, the Court found that Defendant was responsible for the distribution of 17.2 kilograms of cocaine base. Section 2D1.5(a)(1) of the United State Sentencing Guidelines ("Guidelines") directed that the base offense level was 4 plus the offense level from Guidelines § 2D1.1 applicable to the underlying offense. Guidelines § 2D1.1(c)(1) set the base offense level for the distribution of an excess of 1.5 kilograms of cocaine base at 38. Adding four offense levels pursuant to Guidelines § 2D1.5(a)(1) resulted in a base offense level of 42. Taking 3 levels off for acceptance of responsibility and for a timely plea resulted in a total offense level of 39. At a criminal history category II, Defendant's Guidelines range of imprisonment was 292 to 365 months. However, because Felder had a prior drug felony conviction, as reflected in a Special Information filed pursuant to 21 U.S.C. § 851, the statutory mandatory minimum term of imprisonment was 30 years. See 21 U.S.C. § 848. Accordingly, the Guidelines range of imprisonment was then 360 - 365 months. See U.S.S.G. § 5G1.1.

At sentencing, the Government moved pursuant to 18 U.S.C. § 3553(e) and U.S.S.G. § 5K1.1 for a downward departure from the statutory minimum term of imprisonment and Guideline imprisonment range based upon Felder's substantial assistance to the Government. The Court granted the motion and sentenced Defendant to 210 months of imprisoned.

Felder now moves to reduce his sentence pursuant to 18 U.S.C. § 3582(c)(2) based on U.S. Sentencing Guidelines Amendment 706. The United States opposes the motion. For the reasons set forth below, the motion is denied.


The applicable statute providing authority for the Court to re-sentence a defendant in these circumstances is 18 U.S.C. § 3582(c)(2). This provides:

[I]n the case of a defendant who has been sentenced to a term of imprisonment based on a sentencing range that has subsequently been lowered by the Sentencing Commission pursuant to 28 U.S.C. § 994(o), upon motion of the defendant or the Director of the Bureau of Prisons, or on its own motion, the court may reduce the term of imprisonment, after considering the factors set forth in section 3553(a) to the extent that they are applicable, if such a reduction is consistent with applicable policy statements issued by the Sentencing Commission. 18 U.S.C. § 3582(c)(2).

The applicable policy statement issued by the Sentencing Commission is U.S.S.G. §1B1.10 ("Reduction in Term of Imprisonment as a Result of Amended Guideline Range (Policy Statement)"). This provides in pertinent part:

(a) Authority. -* * *

(2) Exclusions. - A reduction in the defendant's term of imprisonment is not consistent with this policy statement and therefore is not authorized under 18 U.S.C. § 3582(c)(2) if-

(B) [Amendment 706] does not have the effect of lowering the defendant's applicable guideline range.

U.S.S.G. § 1B1.10(a)(2).

Amendment 706 does not apply to Defendant because he was responsible for more than 4.5 kilograms of crack cocaine. See U.S.S.G. App. C, Amend. 706; U.S.S.G. § 2D1.1(c); see also United States v. Harris, 2009 WL 368321(11th Cir. Feb 17, 2009)( per curiam ) ("Amendment 706 reduced offense levels in certain crack cocaine cases by two levels, as reflected in the drug quantity table in U.S.S.G. § 2D1.1(c). . . . A defendant who was held accountable for 4.5 kilograms or more of crack cocaine is not eligible for a sentence reduction under § 3582(c)(2) and Amendment 706 because his base offense level remains at 38, and, thus, his Guidelines sentence range has not been reduced."); United States v. Jones, 548 F.3d 1366, 1369 (11 th Cir. 2008)("Under Amendment 706, the guidelines now provide a base offense level of 36 for defendants who are responsible for at least 1.5 kilograms but less than 4.5 kilograms of crack cocaine. . . . However, a base offense level of 38 still applies to defendants responsible for 4.5 kilograms or more."). Because Amendment 706 does not apply, the Court lacks authority to reduce the ...

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